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TMI Blog2009 (7) TMI 1361X X X X Extracts X X X X X X X X Extracts X X X X ..... n 12.03.1999 amongst the four brothers. It is the case of the Petitioner that the four brothers referred the question of finalization and settlement of all family matters to two arbitrators vide the letter of appointment dated 13.05.2001. The Petitioner herein assigned to the first Respondent all its rights in the trade mark JOHNSON vide an Assignment Deed Dated 1.4.1999. The grievance of the Petitioner is that the first Respondent in breach of the understanding and obligations comprised in the memorandum of partition (MoP) filed the application for recordal alongwith deed of assignment with the Trade Marks Registry without disclosing the memorandum of partition. Petitioner thereupon served upon the first Respondent a letter of revocation dated 15.05.2000. The further grievance of the Petitioner is that despite the revocation of the deed of assignment, the Registrar proceeded to take on record the deed of assignment vide his first order dated 19.07.2000. A review petition was filed by the Petitioner for recall of the said order on the ground that the order had been passed in violation of the principles of natural justice. Review applications were allowed and hearing on form TM-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss of those actually entered in the register or envisaged in the Memorandum of Partition. 4. It has also been submitted that the Board has failed to take note of the fact that the Memorandum of Partition provided for the partition of the family property including the trade-mark rights and thus the Registrar ought to have held that the deed of assignment was a corollary to the Memorandum of Partition. Learned Counsel has also strongly urged before this Court that the finding - the Memorandum of Partition was only draft Memorandum and thus cannot have an overriding effect over and above the assignment - was beyond the jurisdiction of the learned Registrar. In support of the contention that the procedure for registration of assignment by no means can be regarded as purely an administrative proceedings and that the Registrar while discharging his duties in such cases performs quasi judicial functions whereby he decides prima facie rights of the parties and that the procedure for registration of assignment is not a mere formality in view of the proviso to Section 45(1). Learned Counsel has relied upon (i) Radha Kishan Khandelwal v. Assistant Registrar of Trade Marks and Ors. AIR 1969 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in class 21, and also various pending applications at that time pertaining to the mark 'JOHNSON' in various classes, namely, 398343 in class 7, 319954, 398341 and 390169 in class 9, 398342 in class 11, and 319953 in class 21 for wider specification of goods in the respective classes, in favour of Respondent No. 1. The Clause 1.1 of Addendum to Memorandum of Partition reads as under: 1.1 In reference to Para 3.3 of Memorandum of Partition it is further clarified that the Trade Mark registration will be assigned by Classic Equipments (P) Ltd. to the Head receiving Trade Mark and Trading items in Group-A, as under: (a) Trade Mark No. 195359 (in Class-21)--This trade mark registration will be assigned to Group-A in favour of respective Head. (b) Trade Mark No. 319953 (in Class 21)--This Trade mark covers the same items as covered in above Registration No. 195359 (in Class -21). This Trade Mark will be assigned to the Head receiving enamel Wares and Non-Stick wares in Group-A, to cover the items of enamel wares and non stick wares subject to a declaration by the Head receiving Enamel wares, that he will in no circumstances claim any item for registration except enamel w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been determined by a competent court. However, Learned Counsel does not dispute that the power of the Registrar under Section 45 of the Trade Marks Act, is quasi judicial in nature whereby he decides prima facie rights of the parties, namely, the assignor and the assignee, for which counsel relies upon AIR 1969 Delhi 324 more particularly paragraph 26 at page 329. He also submits that his power under Section 45 is to be guided and regulated by Chapter 4, Rules 68 to 79 of the Trade Marks Rule, 2002. 12. Learned Counsel for the Respondent has strongly urged before this Court that the deed of assignment can be compared to any other contract and the Registrar under Section 45 has to prima facie satisfy himself as to the validity/formation of the contract and questions with regard to the working of the contract are irrelevant for according satisfaction by the Registrar. Learned Counsel also submits that the dispute about the validity of the assignment can be raised only on the following principal grounds: (A) If one or more essential ingredients of a contract are absent. (B) That the assignment is invalid because of the provisions contained in Chapter V. i.e. Section 37 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cution of the assignment deed. Thus, an application to the Registrar to register the assignee as the registered proprietor is only an act in furtherance of the assignment. Registration of the name of the assignee as the registered assignee does not confer title on him, it is merely evidence of his title. It is further submitted that an assignment is irrevocable. 14. Counsel for the Respondent further submits that in the present case, the Petitioner/Classic has never invoked the jurisdiction of any Civil Court to seek cancellation of the assignment deed. The assignment deed is dated 01.04.1999. The letter alleging breach and as such giving a purported cause of action to Classic to seek cancellation is dated 15.05.2000. Assuming though not admitting that to be the latest date when the facts entitling the Plaintiff to have the instrument cancelled first became known to Classic under Article 59 of Limitation Act - the 3 years have long expired. 15. While responding to the argument raised by the counsel for the Petitioner that the Respondent has made a breach of the terms of the assignment, as the Respondent has interfered with the rights of the M/s. Blumac Electrical India, Learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t under Articles 226 and 227 of the Constitution of India and while taking into consideration various judgments has held that no doubt the power of the High Court under Articles 226 and 227 are very wide and extensive over all Courts and Tribunals, the same are to be exercised not as a Court of Appeal and can neither review or re-apprise the evidence, but ordinarily should interfere where there is grave miscarriage of justice or flagrant violation of law: 38. Though powers of a High Court under Articles 226 and 227 are very wide and extensive over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction, such powers must be exercised within the limits of law. The power is supervisory in nature. The High Court does not act as a court of appeal or a court of error. It can neither review nor reappreciate, nor reweigh the evidence upon which determination of a subordinate court or inferior tribunal purports to be based or to correct errors of fact or even of law and to substitute its own decision for that of the inferior court or tribunal. The powers are required to be exercised most sparingly and only in appropriate cases in order to keep t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e finding is such, which no reasonable man could arrive at, on the materials on record. 42. In State v. Navjot Sandhu (2003) 6 SCC 641 : 2003 SCC (Cri) 1545 this Court reiterated: (SCC pp. 656-57, para 28) 28. Thus, the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all courts and tribunals through-out the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any Act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used to meet the ends of justice. They can be used to interfere even with an interlocutory order. However, the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms purport to exercise any such discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itle. Proof of the title is the first requirement for registration by the Registrar. Thus, the Registrar must satisfy himself, whether the document suffers from any legal infirmity with regard to its validity or formation, and also whether the assignment is invalid or violates any of the provisions of the Trade Marks Act. The Registrar may also satisfy himself whether the documents have been executed by misrepresentation or fraud. The order dated 22.2.2008 of the IPAB while examining the Deed of Assignment dated 1.4.1999 clearly records there are no acts specified in the Deed of assignment which are required to be performed before transfer was to be completed. At least no such clauses in the assignment Deed have been brought to our attention by Learned Counsel for the assignor/Appellant . Thus it can be said that there is no error apparent on the face of the Deed of Assignment dated 1.4.1999. 23. The proviso to Section 45(1) of the Trade Marks Act, 1999 further reposes a duty on the Registrar to adjudge that there should be a real and bona fide dispute between the parties, and the event of their being any, the Registrar may, in his discretion, refuse to register the assignment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Assignment , it has been stated in Black's Law Dictionary. Special Deluxe Ed., p. 106, is a transfer or making over to another of the whole of any property, real or personal, in possession or in action, or of any estate or right therein . It has further been stated as The transfer by a party of all its rights to some kind of property, usually intangible property such as rights in lease, mortgage, arrangement of sale or partnership . 28. The distinction between a license and assignment has been stated in Chapter 20 of Law of Trade Marks by passing off by P. Narayana Sixth Edition. The relevant portions of the paragraph 20.02 are extracted hereunder: 20.02 Distinction between licensing and assignment Property in a trade mark consists in the exclusive right to use the mark in relation to some goods, subject of course to the right of honest concurrent user by others Assignment is a permanent transfer of this right to use, while licence is a temporary transfer of this right, either exclusively or non-exclusively ...licence could be revoked, whereas an assignment is irrevocable. 29. Once an Assignment Deed has been executed, the assignor ceases to have any right, title ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rbitrator, who was appointed by the parties to resolve the family disputes as well. 32. In order to rely on the proviso II of Section 45(1) of the Trade Marks Act, it is incumbent on the Petitioner to show that prima facie a dispute exists between the assignor and the assignee and secondly the assignor must place on record sufficient material to show that the assignor has taken steps to get the disputes resolved through Court or is likely to take steps within a reasonable time to get the disputes adjudicated. In this case except the letter of cancellation, assignor did not place any material on record before the Registrar till the assignment Deed was registered or any material to show that any steps had been taken or were in the process of being taken in the Court of Law. No doubt in case of a dispute between assignor and assignee the Registrar may refuse to register the assignment until rights of the parties have been determined by the Competent Court. Although no time limit has been fixed, yet the Registrar can await for the decision only if some dispute is pending adjudication in a competent Court. Thus, it cannot be said that mere revocation of an assignment Deed is a disput ..... X X X X Extracts X X X X X X X X Extracts X X X X
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